Last edited: November 24, 2007

 

Florida

  • Statute: 800.02, Unnatural and Lascivious Act. Unconstitutional under Lawrence v. Texas. 
  • Penalty: 60 days/$500
  • Classification: Misdemeanor
  • Restrictions: None

Florida’s overtly discriminatory adoption law banning gay people from adopting used the Florida sodomy law as a justification. With the Supreme Court decision in Lawrence v. Texas, that rationalization has been dropped. The "best interest of the child" standard is now being misused to break up families.

Not since Franklin v. Florida, 257 So.2d (Fla 1971), has this law been enforced against homosexual conduct.

Statute

800.02 Unnatural and lascivious act

A person who commits any unnatural and lascivious act with another person commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A mother's breast feeding of her baby does not under any circumstance violate this section.

History: s. 1, ch. 7361, 1917; RGS 5425; CGL 7568; s. 778, ch. 71-136; s. 2, ch. 93-4.

Interpretation prior to Lawrence v. Texas

Florida’s "sodomy" law is complex.

Florida does not have a specific Sodomy Law. A felony law used in the arrest of two men engaged in a sexual act in a car was struck down as too vague to enforce in 1972. An accompanying 2nd degree misdemeanor lewdness charge (800.2 Unnatural and lascivious act) was not dismissed but legal analysts have agreed that other factors (such as the somewhat public nature of the activity) may have triggered the charge rather than sexual orientation or specific activity of the men.

My understanding is that no Floridian has gone to court on this misdemeanor charge since the passage of Florida’s Privacy Amendment in 1980—one of the strongest privacy provisions in the country. It has however been cited in custody cases by homophobes to justify taking children from lgbt parents or preventing adoption. The primary focus of work to overturn the so-called sodomy law has been legal.

Some tried to get it swept away along with other archaic, unenforced laws. Others have looked for the "ideal" case to take to a supportive prosecutor...we can’t challenge it in court if no one gets charged with it.

The other path is to challenge legislatively. We are developing the list of legislators we can turn to on this issue and the prospects are not good in the near term. Education is our primary focus when it comes to the legislature on the issue.

We also have a lawsuit challenging the fact that Florida is the only state backward enough to ban adoptions by "homosexuals." We are eager to see how the "sodomy law" factors in to that battle.

—Nadine Smith

History

            1842     Florida becomes the first state in 123 years to make the penalty for sodomy death. It is unclear why the penalty was raised, but no death sentences are carried out in the state for it.

            1845     Three years after making sodomy a capital offense, Florida enacts a law forbidding anyone convicted of sodomy from being a witness in a trial.

            1921     Probably the most homophobic language ever used in a sodomy opinion appears in a decision from the Florida Supreme Court. “A discussion of the loathsome, revolting crime would be of no edification to the people, nor interest to the members of the bar. The creatures who are guilty are entitled to a consideration of their case because they are called human beings and are entitled to the protection of the laws.”

            1943     The Florida Supreme Court uses some unjudicious and ungrammatical language concerning the defendant in a sodomy case, asking if “the action of a 76 year old, aged Indian War Veteran, feeble physically and mentally, in, after having met the two girls of 11 and 13 years of age who solicited him, went to his residence and there they both get on the bed, pull up their dresses and drop down their panties, when he in turn on his back in the same bed allowed them to diddle with his rag-like penis, unerectable, lifeless and useless except to connect the bladder with the outside world for more than six years since the death of his wife, utterly incapable of either penetration or emission, and wad it like a rag into their mouths, and then, in a feeble and aged condition impelled by the irresistible impulse, in turn he would kiss and put his tongue in their little, though potentially influential and powerful vaginas?”

            1943     The Florida Supreme Court finds that, if death were reinstated as the penalty for consensual sodomy, it would be constitutional.

            1960     A unique opinion from the Attorney General of Florida decides that an act of sodomy committed on an Indian reservation between two Indians or an Indian and a non-Indian can not be prosecuted under state law.

            1973     A year-and-a-half after striking down the state’s felony “crime against nature” law as unconstitutionally vague, the Florida Supreme Court, with no changes in membership, upholds the state’s misdemeanor “unnatural and lascivious acts” law, finding “against nature” too vague, but “unnatural” perfectly understandable.

            1975     A trial court Miami is the first to find a Gay bathhouse a private place where sexual activity is constitutionally protected.

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Equality Florida
1222 S. Dale Mabry Suite 652
Tampa, FL 33629
1-813-253-5962
eqfl@eqfl.org

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